All They Want To Do Is Sue

The ongoing legal skirmish between Don Henley and a California assemblyman / U.S. Senate candidate over whether the retooling of “Boys of Summer” and “All She Wants To Do Is Dance” is protected speech rages on, with both sides filing cross-motions in April for summary judgment.

At issue is whether Assemblyman Chuck DeVore’s appropriation of music and rewriting of lyrics to mock U.S. Senator Barbara Boxer and President Barack Obama is a parody, and thus a fair use of the works, or satire that potentially infringes copyright.

Henley, along with producer Mike Campbell (also of Tom Petty & The Heartbreakers), filed the original suit in April 2009 against DeVore and political consultant Justin Hart. DeVore is a Republican candidate for the U.S. Senate seat currently held by Boxer.

DeVore and Hart produced a campaign video, using music from Henley and Campbell’s “Boys of Summer” that mocked Boxer and triggered a takedown notice from Henley’s attorneys to YouTube and another service where the video was posted.

The candidate challenged the notice, and YouTube told Henley’s legal eagles they had 10 days to take action against DeVore or the video would go back online.

In the meantime, according to Henley’s complaint, DeVore and Hart posted a second video using music from “All She Wants To Do Is Dance” after receiving notice the first video was being challenged.

“Again, DeVore and Hart copied almost the entire musical composition note for note, altering the lyrics to suit their own purpose and, using a recorded performance of the work to mimic the original Henley recording, produced and distributed this second video,” Henley and Campbell’s complaint says.

DeVore, in responding to the suit, has claimed the works are indeed parody – which has been defined in previous case law as the use of some elements of a composition to create a new one that at least in part comments on the original author’s own works.

“DeVore and Hart contend that the parodies are core political speech, and that the parodies are protected by the Fair Use Doctrine under the United States Copyright Code. … DeVore and Hart contend that fair use principles allow them to make, reproduce, copy, license, display, create additional derivative works and/or use the existing parodies and have the right to make … similar parodies in the future,” the cross-complaint says.

“Moreover, this issue is likely to arise again in the future because DeVore and Hart – and countless others – believe they have the right to make, display and use parodies like the ones at issue in this case.”

Though Boxer and Obama are mocked in the videos, DeVore says they mock Henley – and his history of supporting liberal causes – as well.

Not only is he mocking Henley, DeVore’s counter-claim charges Henley and Campbell with making false statements to YouTube and other third parties to squelch free speech and with knowing the videos are fair-use parodies. His countersuit seeks unspecific damages, attorney’s fees and court costs.

“[Henley and Campbell] subjectively and objectively knew that the representation – specifically, that they owned the copyrights to said works and/or that the works were infringing and not a fair use – made to the third parties was a false statement and that it was a material statement made … to secure removal of the parodies or eliminate public access to the parodies,” the cross-complaint says. DeVore and Hart claim they “have been injured by these statements and are entitled to damages … for these knowingly material misrepresentations.”

Henley and Campbell argue that the works are not parody, but infringing satire. “Defendants did not select Plaintiff’s popular musical compositions because they sought to mock, criticize, or comment on them. Rather, defendants took Plaintiff’s songs as instantly recognizable vehicles to broadcast their messages, which have no relation to Plaintiffs or their artistic works.”

Ben Sheffner, senior counsel for NBC Universal Television Group, wrote in his “Copyrights & Campaigns” blog that “put simply, a parody comments on the work itself; a satire uses the work to comment on something else.”

Henley’s brief includes evidence to support his claim that DeVore is using the videos and resultant legal scuffle to get some free publicity and raise money for his Senate campaign.

A hearing on the filings for summary judgment in the case is scheduled June 1.